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December 9, 2016

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Trespass

If you enter private property without the owner's permission or
enter portions of public property that are off limits to the public,
you could be liable for civil or criminal trespass. For example, you
may not walk into your neighbor's house uninvited, sneak into your
congressperson's office, or pretend to be a public official to gain
access to someone else's property.

In general, if you are invited onto someone's property or
otherwise have permission to be on the property, you will not be
considered a trespasser. If you are asked to leave, however, you may be
trespassing if you refuse to do so.

Seeking Consent to Enter Property

You should make sure that you get consent before entering
someone else's property. This consent must come from the individual,
group of individuals, or business entity that is in possession of the
property. In many cases this means that you need to get the owner's
consent. However, if you want access to leased property, you must get
the lessee's consent. Thus, a resident of an apartment complex can
invite you into their apartment and you will not be considered a
trespasser even if the landlord or owner objects to your presence.
Conversely, if the owner gives you permission to access the resident's
apartment and the resident declines to do the same, you may be liable
for trespass if you enter the resident's property.

In some cases you'll be able to get express consent (verbal or
in writing) from the person in possession of the property. In other
cases you may believe you have the person's implied consent for your
ability to enter her property. This type of situation occurs when:

the person is not present, but your prior contact with
the person leads you to believe that you can enter her property without
express permission; or

you don't ask for permission, and the person keeps silent during your visit to her property.

If you rely on implied consent, you may find it difficult to defend
yourself if you are charged with trespassing. You will need to show
that a reasonable person in the same situation would have believed that
there was implied consent based upon the conduct of the person in
possession of the property and the overall circumstance.

Scope of Consent

If you have a right to be present on private or public property
you will not be trespassing if your use of the property is consistent
with your right to be there. Make sure you understand the scope of the
permission you've been given and stay within its boundaries.

For example, you generally have a right to attend, and report
on, court hearings, legislative sessions, and some governmental
meetings. You can learn more about these rights in our section on Access to Government Information, Electronic Records, Meetings and Public Spaces.
However, you have no right to enter a judge's chambers located in the
courthouse, or private offices in the same building hosting the
legislative sessions and other governmental meetings.

Misrepresenting yourself in order to gain consent

You may want to engage in investigative reporting tactics in
order to inform the public about improper business practices or
governmental wrongdoing, and thus may feel the need to misrepresent
yourself in order to gain the necessary consent. If you do so, you may
find yourself facing charges of trespass on the basis that your
misrepresentation vitiated the consent given to you.

For example, in Food Lion v. Capital Cities/A.B.C.,
two ABC journalists falsified their resumes, and became employees of
Food Lion grocery stores. 194 F.3d 505 (4th Cir. 1999). The two
journalists gained access to areas of the store that were off limits to
the general public and used hidden cameras to record unsanitary meat
handling practices. The appellate court upheld a jury verdict finding
the journalists liable for trespass on the basis that the journalists
had breached their duty of loyalty to their employer, Food Lion.

In a second case involving ABC, however, a court did not hold
ABC liable for trespass because it concluded that ABC's employees did
not actually interfere with the owners possession or use of the
property. Desnick v. American Broad. Cos.,
44 F.3d 1345 (7th Cir. 1995). In Desnick, two ABC employees posed as patients and
requested eye examinations at Desnick's eye clinics. The employees used
hidden cameras and recorded the eye examinations which were
subsequently used for a news story about the care and advice received
at Desnick's eye clinics. Despite the ABC employees' misrepresentation
of themselves as patients, the court declined to hold ABC liable for
trespass because the eye clinics were open to the public, and the ABC
employees did not interfere with Desnick's ownership or possession of
his property.

Other issues may also come into play when you misrepresent
yourself, such as laws against posing as a public official. Given the
complexity of the caselaw, if you feel that you must conceal your
identity in order to access property, you should get legal assistance
to avoid claims of trespass (as well as other claims like fraud and
invasion of privacy). Refer to the section on Finding Legal Help in this guide for more information.

We are looking for contributing authors with expertise in media law, intellectual property, First Amendment, and other related fields to join us as guest bloggers. If you are interested, please contact us for more details.

Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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